The Royal Commission into Institutional Responses to Child Sexual Abuse and related inquiries

Kirsty Magarey, Law and Bills Digest

Key issue 
The Royal Commission into Institutional Responses to Child Sexual Abuse was announced in 2012 and its interim report is due in June 2014. The states and territories will be intimately involved in developing responses and while the timelines for the Royal Commission are long, controversies have already arisen.

Royal Commission into institutional responses to child sexual abuse

The establishment of the Royal Commission into Institutional Responses to Child Sexual Abuse was announced by then Prime Minister Gillard on 12 November 2012. Historically, the Commonwealth has not played a significant role in the handling of sexual abuse issues, as this is the responsibility of state and territory governments. It was, however, deemed appropriate to obtain a national perspective on this matter.

The processes establishing the Royal Commission have been consultative and have generally received bipartisan support, despite some initial concerns in the broader community that the Australian Government was not best placed to manage such issues.

Before issuing the Letters Patent with the final terms of reference and the appointment of the six-member Royal Commission on 11 January 2013, the Government conducted a brief consultation, issuing a discussion paper on 19 November 2012, with submissions accepted to 26 November 2012.

The Royal Commissions Amendment Bill 2013 was passed through the Parliament with no dissenting voices, with the then Opposition expressing the ‘Coalition's wholehearted support’. The Bill received Royal Assent on 28 March 2013.

The Royal Commission will work closely with the states and territories. All states have issued their own complementary Letters Patent to allow the Royal Commission to function effectively throughout Australia. Two current state inquiries have been given the power to cooperate with the Royal Commission:

Challenging authority

The Chair of the Royal Commission, Justice McClellan, observed at an early stage that the Royal Commission would stand ready ‘to challenge authority and the actions of those in power’.

The Royal Commission has already identified over 40 relevant inquiries, mostly undertaken at a state and territory level, which preceded its establishment and will inform its initial research.

The Royal Commission will consider not only the effectiveness of measures suggested earlier, but also the extent to which such measures have been successfully implemented and the advisability of introducing them into other jurisdictions.

It will be difficult to identify which issues—such as ‘working-with-children’ checks—need to be addressed at a national level.

The Royal Commission has commenced an extensive research program. It has released several issues papers and called for submissions on Working with Children Check, Towards Healing and Child Safe Institutions.

Bearing witness

It has been observed with respect to the establishment of the Royal Commission: ‘The Government cannot undo the past. It cannot take away the pain. But we can listen and we can bear witness’. Extensive private hearings are already underway.

Justice McClellan has remarked on the need to listen and on the lack of community understanding regarding the effect of sexual abuse on children and the extent to which it impacts on their lives. The hearings process will, in part, attempt to address this ignorance.

The amendment Bill passed by the Parliament was strongly focussed on protecting victims by providing for small private hearings and the confidentiality of information provided. It also allows victims to choose appropriate methods of communication.

It has been observed that the need to protect alleged perpetrators is also a concern, although it was not the focus of the amendment Bill. The Royal Commission will not directly be making individual findings; however, it has the power to refer matters to the relevant authorities without the evidence of witnesses being tested through traditional legal methods. Both Justice McClellan and Gail Furness, Counsel Assisting, have commented that evidence given in private hearings will have limited evidentiary use.

In a widely reported comment, the Chief Executive Officer of the Royal Commission, Janette Dines, observed the Royal Commission was not established to examine individual cases of alleged abuse but to identify where institutions have gone wrong and what can be done to protect children in the future.

Survivors of child sexual abuse—both those who choose to appear before the Royal Commission and those who may be affected by its media coverage—require appropriate support. Accordingly, funding of $434.1 million over four years provided for the Royal Commission in the 2013–14 Budget included $45 million for expert support services. These services include the provision of free legal advice and counselling, support and case management services.

Timeframes and coverage

As noted above, the deadlines for both the Victorian and NSW inquiries have been extended. NSW Premier Barry O'Farrell commented:

… it is obviously more important that the relevant matters are properly and thoroughly investigated … No-one wants any shortcuts when it comes into matters as serious as these.

An early concern regarding the Royal Commission was the length of time it might take to address the issues. It has been noted with concern that a comparable Irish Commission took nine years to conduct its inquiry.

Timelines may extend not only because the labour involved has been more than expected, but also because the terms of reference may be expanded. Interestingly, the Mullighan Inquiry in South Australia initially investigated children in state care. However, it was subsequently found necessary to extend the Inquiry to children on the APY (Anangu Pitjantjatjara Yankunytjatjara) Lands. The question as to whether it is appropriate to extend the Royal Commission to investigate abuse in a domestic setting, as well as within institutional settings, has already arisen. It has been noted that abuse in a family is even more pervasive and pernicious than abuse in an institutional setting.

The Royal Commission is required by its terms of reference to prepare an interim report by 30 June 2014, although this could be renegotiated. The final reporting date is currently scheduled for no later than 31 December 2015.

Further reading

M Neilsen and K Magarey, Royal Commissions Amendment Bill 2013, Bills digest, 83, 2012–13, Parliamentary Library, Canberra, 2013.

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